Opinion
No. 30751.
January 20, 1934.
1. ROBBERY.
In robbery prosecution, property taken need not have actual pecuniary value if it appears that it had some value to person robbed (Laws 1932, chapter 328).
2. ROBBERY.
That gloves taken were preserved and carried in pocket of owner held sufficient, in robbery prosecution, to show that owner considered them of some value to himself (Laws 1932, chapter 328).
3. ROBBERY.
In robbery prosecution, taking of gloves from pocket of clothing worn by person robbed into possession of one of assailants held sufficient asportation (Laws 1932, chapter 328).
4. CRIMINAL LAW.
Admission of testimony of chief of police that he required defendant to put on overcoat found in his room for purposes of identification held not error, as requiring defendant to give evidence against himself (Constitution U.S. Amendment 5).
APPEAL from Circuit Court of Coahoma County.
Quitman Ross, of Laurel, for appellant.
At common law the elements of robbery were the felonious and forceful taking of some property of value from the person or from the presence of another against his will.
4 Blackstone's Commentaries, 242.
The statute, section 1126, Miss. Code of 1930, is but declaratory of the common law.
McDaniel v. State, 8 S. M. 401, 47 L.R.A. (N.S.) 93.
Certainly the taking of a thing of no value would not be robbery even though all the other elements were present in the attempt. A thing of no value and nothing are one and the same thing.
State v. Snowden, 145 So. 622.
The element of larceny is not proven for the proof does not show that the gloves, indeed if taken, were "carried away."
Thompson v. State, 134 So. 679.
The proof in this case shows only an attempt to rob, if indeed it shows anything.
At the time the appellant was identified by Mr. Gaddis as having been one of the persons who robbed or attempted to rob him, the appellant was dressed in a cap and overcoat, and that this cap and overcoat was of the particular or peculiar kind said to have been worn by the person alleged to have robbed the man Gaddis. This required the appellant to give evidence against himself.
Burnside v. State, 110 So. 121; Butler v. State, 135 Miss. 885, 101 So. 193.
W.H. Maynard, Special Agent, for the state.
While it is necessary to prove value an actual pecuniary value is not essential.
54 C.J., "Robbery," sec. 16; 23 R.C.L., "Robbery," sec. 3; Rex v. Bingley, 5 C. P. 602, 172 Reprint 1118; Jackson v. State, 69 Ala. 249.
The value necessary for property taken need only be the minutest.
2 Bishop's Book on Criminal Law (9 Ed.), sec. 1162.
It has been held that a general verdict of guilty in a larceny case was a finding upon all the material averments of the indictment including the value of the property, although no mention was made in the verdict as to value.
Cook v. State, 49 Miss. 8; Cole v. State, 4 So. 577; Wilborn v. State, 8 Sm. M. 345; I.C.R.R. v. Coln, 145 Miss. 399, 110 So. 782; 23 R.C.L., "Robbery," sec. 3.
Robbery is the feloniously taking of the property of another from his person or presence against his will by means of force or by putting him in fear.
Baygents v. State, 154 Miss. 36, 122 So. 187.
It must appear that the property was taken from the possession of the victim into that of the robber. But the crime is consummated if the robber acquires possession of the property for even a short time, and his subsequent disposition of the property taken is immaterial.
54 C.J., "Robbery," sec. 13; Rex v. Lapier, 168 Reprint 263; Rex v. Peat, 168 Reprint 216; 23 R.C.L., "Robbery," sec. 5; 2 Bishop on Criminal Law (9 Ed.), sec. 1161; People v. Campbell, 234 Ill. 391, 123 A.S.R. 107; Delk v. State, 64 Miss. 77.
A slight removal is sufficient to constitute larceny.
McIntosh v. State, 2 Miss. Dec. 673.
In determining whether or not any error was made by the lower court, let us first see what possible prejudice was done the accused by having him put on a coat or cap before the trial. There is no evidence that Gaddis required this done in order to identify appellant. Neither is it shown that the identification of appellant was made by the means or aid of the overcoat.
There is a sharp distinction between testimonial compulsion and the type of evidence objected to in our case. It is only in the former that the privilege granted by our constitution is violated.
4 Wigmore (2 Ed.), sec. 2265; Holt v. U.S., 218 U.S. 245; Benson v. State, 69 S.W. 165; Magee v. State, 92 Miss. 865, 46 So. 529; U.S. v. Cross, 20 D.C. 382; Underwood v. State, 108 Miss. 34, 66 So. 285; Biggs v. State, 64 A.L.R. 1085; Moon v. State, 16 A.L.R. 362.
Every material element of robbery as defined in Mississippi Laws of 1932, chapter 328, and in the decisions of our court has been fully proved in this case and no reversible error exists in the record.
The appellant was indicted and convicted of robbery by means of a deadly weapon, the indictment being based on chapter 328, Laws 1932, which reads as follows: "Be it enacted by the Legislature of the state of Mississippi, That every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years."
The indictment charged the felonious taking from the person of R.C. Gaddis of "one pair of gloves of the property of R.C. Gaddis, of the value of one dollar good and lawful money of the United States." Mr. Gaddis testified that he arrived at his home in the city of Laurel about nine P.M.; that, as he entered the gate in front of his residence, he was assaulted by two persons who came from behind certain trees or bushes on the side of the walk leading to his residence; that one of these parties covered him with a pistol while the other ran behind him and placed one arm around his waist, and with the other hand went through his pockets and took from the pocket of the overcoat he was wearing a pair of gloves; that he made some outcry, which attracted the attention of persons in the house and nearby, and thereupon his assailants ran away. He positively identified the appellant as being the person who pointed the pistol at him and thereby placed him in fear of immediate injury to his person.
Three assignments of error are argued: First, that the record fails to show the value of the gloves alleged to have been taken by the appellant and his partner; second, it fails to show an asportation; and, third, that by the admission of certain evidence the appellant in effect was required to give evidence against himself.
In a prosecution for robbery, the property taken need not have any actual pecuniary value if it appears that it had some value to the person robbed. 54 C.J. 1012. The value of the property taken need be only the minutest, Bishop on Criminal Law (9 Ed.), vol. 2, sec. 1162, and, as said in the case of Jackson Dean v. State, 69 Ala. 249, if there is evidence showing that the property taken was "not worthless — that it was not wholly unfit for use, or that the owner kept and preserved it as of value to him, it was the subject of robbery, though the pecuniary value which could be imputed to it was nominal, insignificant, or incapable of estimation." The fact that the gloves were preserved and carried in the pocket of the owner is sufficient to show that he considered them of some value to himself.
The evidence offered by the state was to the effect that the gloves were taken from a pocket of the clothing worn by the person assaulted into the possession of one of his assailants, and this was a sufficient asportation. 54 C.J. 1011; 23 R.C.L. 1141.
The third assignment of error is based upon the fact that the chief of police of the city of Laurel was permitted to testify that, when he carried the appellant to Mr. Gaddis for purposes of identification, he required him to put on an overcoat and cap which were found in his room, and which were similar to the cap and coat described by Mr. Gaddis as having been worn by one of his assailants; the contention being that this in effect required the appellant to give evidence against himself. There is no merit in this contention. In Wigmore on Evidence (2 Ed.), vol. 4, par. 2265, in discussing the privilege against self-incrimination, it is said that "not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself. Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one."
This statement of the rule by Mr. Wigmore was approved by this court in the case of Magee v. State, 92 Miss. 865, 46 So. 529, 532, where the court said: "The distinction between the rule excluding confessions obtained by force and the exclusion of mere bodily exhibitions of the defendant, under compulsion, for the purpose of identification, is very clearly pointed out by Wigmore in the section above quoted — section 2266 of volume 3 (2 Ed., vol. 4) of his work. Whatever may have been the holding in some earlier cases, we are thoroughly satisfied that the true view is that set out in volume 3 (2 Ed., vol. 4), sec. 2265 of Wigmore on Evidence."
In the case of Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 3, 54 L.Ed. 1021, 20 Ann. Cas. 1138, it was held that "the protection against self-incrimination afforded by U.S. Constitution, 5th Amendment, extends to the use against the accused of communications extorted from him by physical or moral compulsion, but not to evidence obtained from the exhibition of his person, such as testimony as to the fit of a blouse which he was forced to put on." See, also Benson v. State (Tex. Cr. App.), 69 S.W. 165; Underwood v. State, 108 Miss. 34, 66 So. 285.
The suggestion of error will therefore be overruled.
Overruled.